BILL ANALYSIS Ó
AB 905
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Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 905 (Pan) - As Introduced: February 17, 2011
PROPOSED CONSENT
SUBJECT : DISPOSITION OF REMAINS: AUTHORIZED AGENT
KEY ISSUE : SHOULD THE DESIGNATION BY A MILITARY SERVICE MEMBER
OF A PERSON AUTHORIZED TO DIRECT DISPOSITION OF HIS OR HER
REMAINS ON THAT SERVICE MEMBER'S DEPARTMENT OF DEFENSE "RECORD
OF EMERGENCY DATA" BE SUFFICIENT TO ESTABLISH AN AGENT WHO HAS
THE RIGHT AND DUTY OF DISPOSITION OF THE SERVICE MEMBER'S
REMAINS UNDER CALIFORNIA LAW?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by the Veterans of Foreign Wars (VFW), is
virtually identical to last year's AB 2190 which was approved by
this Committee and the Assembly with unanimous support but died
in the Senate Judiciary Committee. This bill seeks to provide
that designation by a military service member of a person
authorized to direct disposition (PADD) of his or her remains on
a United States Department of Defense Record of Emergency Data,
DD Form 93, shall be sufficient to establish that designee as an
agent who has the right and duty of disposition of the service
member's remains under section 7100(a) of the Health and Safety
Code if the service member dies while on duty.
Importantly, the DD Form 93 would be considered only when the
member dies while serving in a duty status in which the
Department of Defense requires, pursuant to federal law, that
the designated PADD direct the disposition of remains as a
condition for Department-provided burial entitlements. This
attempts to strike a balance that accommodates the service
member's ability to have his or her will and estate planning
carried out under state law, while satisfying federal law
requiring the use of DD Form 93 to designate a PADD to provide
burial entitlements to families of fallen service members. For
these reasons, the bill is supported by the VFW and the
Department of Defense, with no known opposition.
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SUMMARY : Seeks to formally recognize in state law the U.S.
Defense Department DD Form 93 ("Record of Emergency Data") as an
acceptable written instrument of a military service member's
designation of a person to direct the disposition of his or her
remains in the event of death. Specifically, this bill provides
that the designation by a service member of a person authorized
to direct disposition (PADD) on a United States Department of
Defense Record of Emergency Data ("DD Form 93") shall be
sufficient to establish an agent who has the right and duty of
disposition of the remains of that service member, provided he
or she died while on duty in any Branch or Component of the U.S.
Armed Forces, as defined in Section 1481 of Title 10 of the
United States Code.
EXISTING LAW :
1)Permits a competent adult to execute a power of attorney for
health care that may authorize the designated agent to make
health cares decisions as well as decisions relating to the
personal care of the principal. (Probate Code Section 4671.)
2)Permits the agent, subject to limitations in the power of
attorney for health care, to also make decisions that may be
effective after the principal's death, including directing the
disposition of remains under Section 7100 of the Health &
Safety Code. (Probate Code Section 4683.)
3)Provides that the right to control the disposition of the
remains of a deceased person, the location and conditions of
internment, and arrangements for funeral goods and services to
be provided, unless other directions have been given by the
decedent pursuant to a power of attorney for health care,
vests in, and the duty of disposition and the liability for
the reasonable cost of disposition of the remains devolves
upon, the following in the order named:
i) an agent under a power of attorney for health care,
as provided;
ii) the competent surviving spouse or domestic partner;
iii) surviving competent adult children;
iv) surviving competent parents;
v) surviving competent adult sibling;
vi) surviving competent adult person in the next degree
of kinship;
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vii) the public administrator when the deceased has
sufficient assets. (Health & Safety Code Section
7100(a); Family Code Section 297.5)
4)Provides that the agent under the power of attorney for health
care who has the right and duty of disposition is liable for
the costs of disposition only in either of the following
cases:
viii) Where the agent makes a specific agreement to pay
the costs of disposition.
ix) Where, in the absence of a specific agreement, the
agent makes decisions concerning disposition that incur
costs. In which case, the agent is liable only for the
reasonable costs incurred as a result of the agent's
decisions, to the extent that the decedent's estate or
other appropriate fund is insufficient. (Health & Safety
Code Section 7100(a)(1).)
5)Pursuant to the United States Code, provides that the
Secretary of Defense may provide for the recovery, care, and
disposition of the remains of certain categories of military
service members, including (among others):
x) Any Regular of an armed force under his jurisdiction
who dies while on active duty;
xi) A member of a reserve component of an armed force
who dies while on active duty, performing inactive-duty
training, or under certain other conditions;
xii) Various other members, applicants for enlistment,
retired members, and other persons, as specified. (10
U.S.C. 1481.)
6)Pursuant to the United States Code, only the following persons
may be designated to direct disposition of the remains of a
military service member:
xiii) The surviving spouse of the decedent
xiv) Blood relatives of the decedent
xv) Adoptive relatives of the decedent
xvi) A person standing in loco parentis to the decedent
if no person covered by (a) to (c) can be found. (10
U.S.C. 1482.)
7)Establishes responsibilities and uniform personnel policies
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and procedures for notifying and assisting the next of kin
when an active duty service member sustains injury or dies.
(Department of Defense Instruction 1300.18.)
COMMENTS : This bill is virtually identical to last year's AB
2190 which was passed by this Committee and the Assembly with
unanimous support, but died in the Senate Judiciary Committee.
Like the prior bill, this bill would provide that designation by
a military service member of a person authorized to direct
disposition (PADD) of his or her remains on that service
member's Department of Defense DD Form 93 ("Record of Emergency
Data") shall be sufficient to establish that designee as an
agent having the right and duty of disposition of the service
member's remains under Section 7100(a) of the Health and Safety
Code if that service member dies while serving in a duty status.
The Department of Defense (DoD) requires, pursuant to federal
law, that the designated PADD direct the disposition of remains
as a condition for Department-provided burial entitlements.
Background on DD Form 93 under Federal and State Law. Pursuant
to Section 564 of U.S. Public Law 109-163, active duty and
activated guard/reserve members of the military must complete
the federally mandated DD Form 93, in which, among other things,
they must designate a person authorized to direct disposition
("PADD") of their remains in the event of death. The document
is witnessed (but not notarized) by an authorized military
official, and is updated prior to each deployment and every year
on the service member's birthday. The service member may make
changes to his or her DD Form 93 at any time by accessing the
record through a special Internet website maintained by the DoD.
According to instructions printed on the form itself:
For military personnel, Ýthis form] is used to designate
beneficiaries for certain benefits in the event of the
Service member's death. It is also a guide for
disposition of that member's pay and allowances if
captured, missing, or interned. It also shows names and
addresses of the person(s) the Service member desires to
be notified in case of emergency or death
The PADD is of special significance to the DoD because in the
event of the member's death, the Department is required to
contact the PADD designated on Form 93 in order to provide the
burial entitlements that deceased service members are entitled
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to pursuant to 10 U.S.C. §1482(a). The PADD is designated in
Item 13a of the current version of DD Form 93. In addition, the
Service member is informed that he or she "may desire to include
additional information such
as . . . location or existence of a Will" in the box provided
for Item 14 ("Continuation/Remarks").
California law, however, does not recognize the DD Form 93 as an
acceptable written document for service members, in lieu of a
durable power of attorney for health care. This could pose a
problem if the person authorized to direct disposition by the
service member on his DD Form 93 differs from the person
authorized to do so pursuant to Health & Safety Code Section
7100, which specifies a hierarchy of persons from which to
determine the authorized person, the first being an agent under
a power of attorney for health care if one was designated. This
bill seeks to prevent conflict over the disposition of remains
of fallen service members by formally validating the designation
of a person authorized to direct disposition on DD Form 93 for
that same purpose under existing state law.
Author's Statement: According to the author, the bill is
intended to avoid potential civil litigation between family
members and provide clarity during the stressful time of
bereavement after the loss of a service member. In support of
the bill, the author writes:
All military service members complete the federally
mandated United States Defense Department Form 93 (DD Form
93) designating Persons Authorized to Direct Disposition
(PADD) of their remains in the event that the unfortunate
should occur. . . . California law does not currently
recognize the DD Form 93 as an acceptable written document
for service members. This conflict between state and
federal law creates the potential for civil actions between
family members over the ultimate disposition of a fallen
service member's remains.
In support of the previous attempt to enact a virtually
identical measure in AB 2190 (Block) 2009-10, Assemblymember
Block noted:
From a practical standpoint, active duty Service members
(48 percent of whom are less than 25 years old) would be
unlikely to research the pertinent statute for their home
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state and complete the required documentation for
designating an agent, particularly since they have already
designated someone on DD Form 93. Without establishing a
consistent requirement for the recognition of DD Form 93 by
the state, the choice of the Service member could be at
odds with the prioritized list of family members found in
his or her home state statute, thus leading to litigation
and delay in burial.
Similar Legislation in Other States . DD Form 93 already meets
existing legal requirements for designation of an agent to
direct disposition of remains in some states, but this is not
true in states that, for example, do not allow for an authorized
agent or have prescriptive requirements for documenting the
designation of an agent that would preclude DD Form 93 from
being deemed sufficient for that purpose. Texas, for example,
requires any document designating an agent to direct disposition
to be signed by the designee, whereas no such signature is
required on DD Form 93.
To achieve more uniform recognition of the DD Form 93 across the
country, similar legislation was introduced in the past year in
23 other states; 19 of those states enacted laws giving
recognition to the DD Form 93 as an acceptable instrument to
establish a designee as an agent having the right and duty of
disposition of the service member's remains.
This Bill Ultimately Encourages Service Members to Engage in
Careful Estate Planning under Federal and State Law. Like
ordinary civilians, military service members may consult with an
attorney to execute estate planning documents that, among other
things, establish an agent who has the right and duty of
disposition. A potential for conflict then arises when it is
discovered that a deceased service member has already executed
estate planning documents that name a different person having
the right and duty of disposition than is specified in the DD
Form 93.
As previously stated, recognition of the PADD designated in DD
Form 93 is necessary primarily for the purpose of facilitating
the payment of burial entitlements by the Department of Defense
to the family of the deceased service member pursuant to 10
U.S.C. §1481(a). Service members have a responsibility,
required by DoD Instruction 1300.18 (implementing §564 of Public
Law 109-163), to designate a PADD on their DD Form 93. Because
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DD Form 93 is part of the service member's active personnel
record, members know that it is the essential document that will
be consulted by military authorities in the event of their death
or casualty.
Given these parameters, it is reasonable to think that a service
member intent on accomplishing careful estate planning would
prepare those planning documents with the appropriate
responsibilities and requirements in mind. Because the member
has the ability to update his or her DD Form 93 at any time via
the Internet, he or she could presumably update the PADD
designation on DD Form 93 to make it consistent with a will or
other estate planning documents, even while preparing such
documents at an attorney's office or at home. The member is
also directed in Item 14 of DD Form 93 that he or she may
indicate the location or existence of a will so this is known to
military authorities when they consult DD Form 93. Under this
bill, all other elements of a member's will or estate planning
documents not pertaining to the PADD designation on DD Form 93
would be carried out in accordance with the member's wishes, and
would not be "trumped" by information contained in DD Form 93.
Finally, use of DD Form 93 encourages careful estate planning
because military policy ensures that service members have
reviewed their PADD designations at least annually and before
departing on deployment, whereas state statute has no provisions
to ensure a designation document is kept current. For these
reasons, this bill strikes a balance that accommodates the
service member's ability to have his will and estate planning
carried out under state law, while satisfying federal law
requiring the use of DD Form 93 to designate a PADD to provide
burial entitlements.
Limited Applicability in Reserve Duty Situations . Where a
service member is killed in action while deployed overseas, the
Department of Defense arranges for the handling of the remains
pursuant to military policy after establishing the PADD
designated in DD Form 93, so it may provide burial entitlements
appropriately. In those cases, this bill would do nothing to
change existing DoD procedure.
DD Form 93 only applies when the member dies while serving in a
duty status in which the Department of Defense requires that the
designated PADD direct the disposition of remains as a condition
for Department-provided burial entitlements. Duty statuses are
specified in Section 1481 of the Title 10 of the U.S. Code.
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This would allow a member of the Reserve Component, such as a
member of the California National Guard, to have an active
estate plan and an active DD Form 93, each of which would take
precedence depending on the duty status of the member at the
time of death.
However, in cases where a service member is called to active
guard and reserve duty (as defined by 10 U.S.C. 101) in
California by the Governor pursuant to authority under 32 U.S.C.
328, the service member is technically under the command of the
Governor, who is the Commander-in-Chief of the state military
forces. An example of such duty is National Guard assistance
during natural disasters. In that case, this bill would
recognize and give precedent to the decedent's estate planning
documents in California if those documents specify a different
person authorized to direct disposition of the remains than
appears in the decedent's DD Form 93. The bill accomplishes
this by specifically limiting its applicability to cases where
the service member "died while on duty in any branch or
component of the Armed Forces of the United States, as defined
by Section 1481 of Title 10 of the United States Code."
This is appropriate because in situations where the member died
while serving the Governor rather than the Department of
Defense, there is no corresponding DoD requirement that the
designated PADD direct the disposition of remains. Furthermore,
according to the Department, as a practical matter the National
Guard also would encourage members to cross-reference the
existence of other estate planning documents in their DD Form
93, and would try to ensure that the disposition and burial
instructions in both documents are consistent. In this manner,
the designated agent would still be fully aware of the
entitlements available to the decedent in the event the decedent
dies while on duty.
Prior Related Legislation : AB 2190 (Block) last year would have
likewise recognized in state law the U.S. Department of Defense
DD Form 93 (Record of Emergency Data) as an acceptable written
instrument of a military service member's designation of an
agent to direct the disposition of the service member's remains
in the event of the member's death while on active duty with the
U.S. Armed Forces. The bill was approved by this Committee and
the Assembly, but died in the Senate Judiciary Committee due to
the potential conflict with California law regarding the
designation of a domestic partner as an agent having the right
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and duty of disposition of the service member's remains.
REGISTERED SUPPORT / OPPOSITION :
Support
Veterans of Foreign Wars (sponsor)
Opposition
None on file
Analysis Prepared by : Drew Liebert and Erik Martin / JUD. /
(916) 319-2334